shall be necessary to acquire or extinguish for the purpose of constructing and operating the Railroad and also Additions and Extensions free of interference or right of interference. City assures Lessee right to equip and operate ARTICLE XV. The City hereby stipulates and covenants to and with the Lessee that the City will secure and assure to the Lessee, so long as the Lessee shall perform the stipulations of this contract, the right to equip and operate the Railroad (except such route or routes for which consents shall not have been obtained, as set forth in Article X hereof but including such substitute route or routes as and when the necessary consents thereto have been obtained) as prescribed in this contract, free of all right, claim or other interference, whether by injunction, suit for damages, or otherwise, on the part of any owner, abutting owner, or other person; but not including any interference, legal or otherwise, by patentees or persons not including patentees claiming to be patentees of tools, methods or appliances forming part of the Equipment. Provided, however, that the Lessee shall enforce its rights Enforcement against the City under this provision solely by claim for money (including a claim for credit on account of the Lessee's contribution toward the cost of construction) or by injunction, mandamus, certiorari or action for specific performance. Nothing herein contained shall be construed to require the Lessee to do any act in violation of a valid injunction issued by a Court of competent jurisdiction forbidding such act. of covenant In case of ARTICLE XVI. In case the Lessee shall fail to contribute toward the cost of construction of, or to equip, the Railroad, as in this contract defauit provided. (1) The Commission upon notice to the Lessee of not less than thirty Thirty days' (30) days, provided the default be not made good within such period, or within such further time as may be allowed by the Commission, may notice Distribution of revenue (a) By resolution declare the Lessee to be in default; and the City, by City may the Commission, in addition to every other, or in substitution for any complete other, remedy which it may have by law or hereunder, may thereupon forthwith procure by contract or otherwise, as the Commission shall determine, the completion of such part or parts of the Railroad as it may intend to construct with the Lessee's contribution and the completion of such equipment. To that end the City, by the Commission, may require the Lessee to operate such part of the Railroad as may be constructed, in connection with the Existing Railroads and to pool the receipts of such portion of the Railroad and of the Existing Railroads as provided in Article XLIX, subject, however, to the application of certain of the payments provided for in Article XLIX to the purposes hereinafter set forth. The City, by the Commission, may require that such amounts out of the payments to be made to the Lessee as provided in Article XLIX as shall not be necessary to pay interest and sinking fund charges, if any, upon bonds or other evidences of indebtedness to prevent any divestment of the Existing Railroads or any part thereof and to pay interest and sinking fund charges, if any, upon bonds or other evidences of indebtedness (secured by a pledge of this contract) issued by the Lessee, with the approval of the Commission, for the purpose of Construction and Equipment under this contract shall be applied toward the performance and completion of the Lessee's obligations in respect of such contribution and City may contract for completion Reimburse ment of City City may terminate contract May proceed upon security May bring suit, etc. Remedies, not exclusive No Waiver such equipment; or the City, by the Commission, may either or both before and after the beginning of operation as aforesaid contract for the completion of such construction and such equipment and reimburse itself from the amounts aforesaid; or the City, by the Commission, may do partly one thing and partly the other. In any case, in addition, the City shall be entitled out of such profits or otherwise to receive the amount of the damages (as agreed upon by the Commission and the Lessee or if not agreed upon then as determined by arbitration or by the court) that may have been suffered by the City by reason of such failure unless the payment of such damages is made from other sources. Or (b) By resolution declare the contract at an end, in which event the City shall pay to the Lessee the cost of any construction paid for by such portion of the Lessee's contribution as may have been then contributed and the cost of any Equipment that may have been provided, deducting therefrom the amount of the damages (as agreed upon by the Commission and the Lessee or if not agreed upon then as determined by arbitration or by the court) that may have been suffered by the City by reason of such failure unless the payment of such damages is made from other sources. Or (2) The City may also proceed as the Commission shall deem proper upon any security filed or deposited as provided in Chapter IV of this Part. Or (3) The Commission may bring any suit or proceeding for specific performance or for injunction or to recover damages or to obtain any relief or for any purpose proper under this contract. Or (4) The City may avail itself of each and every remedy herein specifically given to the City or, subject to the foregoing provisions of this Article, now or hereafter existing at law or in equity or by statute, and subject as aforesaid, each and every such remedy shall be in addition to every other remedy so specifically given or otherwise so existing and may be exercised from time to time and as often and in such order as may be deemed expedient by the Commission, and the exercise, or the beginning of the exercise, of one remedy shall not be deemed a waiver of the right to exercise, at the same time or thereafter, any other remedy, except that no two inconsistent remedies shall be exercised at the same time. CHAPTER IV ARTICLE XVII. Within thirty (30) days after the execution of this contract the Lessee shall give security for the performance of its obligations as follows: Deposit 1 By depositing with the Comptroller the sum of one million dollars ($1,000,000) in cash or in value of securities as the Lessee may elect. If securities be deposited they shall be securities of which a schedule entitled "SCHEDULE OF CONTRIBUTION AND EQUIPMENT SECURITIES" shall have been previously submitted to, and approved by the Commission in writing. The Commission will give its approval when satisfied as to the character and value of such securities. Security for and equip contribution ment returned The said deposit whether in cash or securities, in the form and as the same shall at any time be, shall be security for the faithful performance by the Lessee of all the covenants, conditions and requirements specified and provided for in respect of the Lessee's contribution toward the cost of construction of the Railroad and in respect of the Lessee's obligation to equip the Railroad for initial operation. In case of any default on the part of the Lessee in such performance then the Comptroller shall forthwith pay or apply to the use of the City the said deposit in cash or securities or so much thereof as may be necessary to reimburse the City for any damages incurred by reason of such default. Whenever there shall have been expended one-quarter (4) of the When to be Lessee's contribution toward the cost of construction and one-quarter (4) of the estimated cost of equipment of the Railroad for initial operation, the Commission shall so certify in writing and in duplicate, one such certificate to be delivered to the Lessee and one to the Comptroller and upon receipt of such certificate the Comptroller shall forthwith pay or deliver to the Lessee one-quarter (4) of said deposit or so much thereof as shall not have been reserved or used or applied for any of the purposes in this chapter mentioned with respect to the Lessee's obligation to contribute towards the cost of construction and to equip the Railroad. Similarly, when and as there shall have been expended other quarter parts of said amount and of the cost of equipment, the Commission shall so certify in duplicate as aforesaid and upon receipt of such certificate the Comptroller shall forthwith pay or deliver to the Lessee a quarter part of said deposit or so much thereof as shall not have been reserved or used or applied for any of the said purposes in this chapter mentioned. 2 Continuing By filing with the Comptroller a bond in due form executed by the Lessee and by two or more sureties being corporations or persons bond approved by the Commission, in the sum of one million dollars ($1,000,000), the said bond to be substantially in the form hereto annexed and entitled "BOND FOR CONTRIBUTION, EQUIPMENT, MAINTENANCE AND OPERATION." Such bond (or cash or securities deposited in lieu thereof as hereinafter provided) in the form and as the same shall at any time be, shall be security for the faithful performance by the Lessee of all the covenants, conditions and requirements specified and provided for in this contract. The Lessee shall only be entitled to the return of said bond (or deposit) upon the termination of the Lease. The premiums during operation on such bond shall be included in the expense of operation, but the premiums thereon prior to the beginning of operation shall be apportioned by the Engineer and charged to cost of construction and cost of equipment. ARTICLE XVIII. In case any of the sureties upon the Bond for Contribution, Equipment, Maintenance and Operation shall become insolvent or unable in the opinion of the Commission to pay promptly the amount of such bond to the extent to which such surety might be liable, then the Lessee, within thirty days after notice by the Commission to the Lessee, Premiums In case of insolvency of sureties Substitution of sureties Deposit of cash or securi ties in lieu of bond In case of default Terms governing deposits shall, by supplemental bond or otherwise, substitute another and sufficient surety to be approved by the Commission in place of the surety so insolvent or unable. If the Lessee shall fail, within such thirty days or such further time as the Commission may grant, to substitute another and sufficient surety, then the Lessee shall, if the Commission so elect, for all the purposes of this contract, be deemed to be in default in the performance of its obligations hereunder and upon the said bond. ARTICLE XIX. In lieu of the said bond the Lessee may, upon the approval of the Commission, deposit with the Comptroller of the City cash equal in amount to the entire amount of the said bond or securities which are lawful for the investment of the funds of savings banks within the State of New York and are worth not less than the entire amount of such bond. If such bond shall have been given then after the deposit of cash and securities in lieu thereof as aforesaid, and the approval thereof by the Commission, the said bond shall be surrendered by the City to the Lessee duly cancelled by the Comptroller. If securities be deposited they shall be securities of which a schedule entitled "SCHEDULE OF CONTINUING SECURITIES" shall have been previously submitted to, and approved by, the Commission in writing. The Commission will give its approval thereto when satisfied as to the character and value of such securities. In case of any default on the part of the Lessee in such performance, and in the further case that the City shall for or by reason of such default, whether by reason of employment of another lessee or lessees or otherwise, incur or become liable for expense through such default as in this contract provided, then the Comptroller shall forthwith pay or apply to the use of the City the amount of such expense out of the said deposit in cash or securities or out of the portion of the deposit remaining at the time. ARTICLE XX. Any cash or securities that may be deposited under the terms of this contract shall be held by the City subject to the following provisions: (a) In case any of the securities shall, in the opinion of the Commission, at any time cease to be of the character of securities in which the savings banks of the State of New York are then authorized by law to invest moneys, or shall, in the opinion of the Commission, at any time become of less value than the value stated for it or them in the said schedule, then within thirty (30) days after notice to the Lessee of the Substitutions objection of the Commission the Lessee shall either substitute therefor securities which shall be approved by the Commission as of the character aforesaid and as being of at least the value of the former securities to which the Commission shall have objected as such value was originally stated in the said schedule, or shall deposit with the Comptroller in cash the amount of such value of such former securities as so originally stated. In case the Lessee shall not within such thirty (30) days substitute such new securities or deposit cash as aforesaid, it shall, if the Commission so elects, be deemed to be in default in the performance of its obligations under this contract. The securities so objected to shall upon such substitution of securities or deposit of cash in lieu thereof be returned to the Lessee. In case of failure to substitute (b) If and as the Commission shall consent, and the law permits, the Substitution Lessee may, from time to time, substitute cash for securities or securities of the character aforesaid for cash, but always so that the total amount and value of the deposit shall not be reduced. of cash (c) The Lessee shall be entitled to receive, when and as received by the Interest City, a sum which shall be equal to the interest, dividends or other income which the City shall receive from such securities (if securities be deposited), or to receive, not oftener than semi-annually, a sum which shall be equal to the interest on said deposit (if made in cash) at a rate not exceeding the highest rate of interest received by the City on the deposit of its funds with banks during the period for which such interest has run and which shall be determined as follows: Such deposit so made by the Lessee (if made in cash) shall be deposited by the Comptroller in an account or accounts in a duly designated city depositary or depositaries, separate and apart from other city moneys so that the exact interest earned upon the deposit may be ascertained. It is further agreed that no claim, upon any ground, shall at any time be made by the Lessee for or on account of or because of not being credited with extra or additional interest over that so actually earned upon such deposit or deposits. If, however, any of the cash or securities so deposited shall have been used or applied for any of the purposes mentioned herein then the Lessee shall not be entitled to interest or other return on the amount of cash or securities so applied from the time of such application. securities (d) The Comptroller shall, upon the requirement of the Commission, in Sale of order to make such payment or application to the use of the City, sell at public auction in New York any of the securities which may then constitute part of such deposit upon notice to the Lessee and upon notice to be published in three daily newspapers, the first publication to be as much as ten days before the sale and such publication to be made three times within such ten days. Any such sale shall be adjourned from time to time if requested by the Commission. The Comptroller shall, upon the requirement of the Commission, deduct from the proceeds of any such sale, all expenses thereof and of such advertisement, and pay and apply to the use of the City so much of the residue of such proceeds as may be necessary for the purpose aforesaid. And the Lessee within ten days after notice from the Commission so to do shall (unless the time be extended by the Commission) by further deposit according to the requirements of the Commission, of money or securities of the character aforesaid approved by the Commission, restore the said deposit with the Comptroller to the full amount originally required. In addition to, or in lieu of, the sale above provided for, the Commission may, in the name of and in behalf of the City, bring any appropriate suit or proceeding in any proper court to enforce the lien and claim of the City in and upon the said deposit, whether such deposit be in money or securities. (e) If at any time when the Lessee shall otherwise be entitled to a return of the said deposit, there shall be pending any claim for damages or loss caused to others by the Lessee under this contract (other than claims against which the City assures the Lessee by this contract), for which it shall be claimed that the City shall be liable, then and in that case the said deposit, or such part thereof as the Commission shall pre Deposit of additional securities City may bring suit Return of deposit |